Operation Enduring Liberty

Operation Enduring Liberty

As the shock of September 11 fades, courts are standing up for civil
liberties.

May 16, 2002

Those who believe that civil liberties are a bedrock of a healthy and secure democracy are beginning to win support in cases stemming from the events of September 11. As shock has given way to a renewed appreciation for the rule of law, courts have stood up to Attorney General John Ashcroft and for civil liberties from Detroit, Michigan, to London, England.

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In recent weeks:

&#167; a federal judge in New York threw out an indictment against Osama Awadallah, finding that he was threatened and denied access to a lawyer in prison and that the government had violated the “material witness” statute in detaining him;

&#167; a New Jersey state court ruled that the identity of all people detained in its state facilities must be disclosed, including the many who have been held on secret immigration charges in the September 11 investigation;

&#167; a federal court in Detroit declared unconstitutional Ashcroft’s decision to try in secret all people picked up on immigration charges in the September 11 investigation;

&#167; a federal judge criticized the government’s efforts to bar John Walker Lindh’s lawyers from interviewing witnesses held at Guant&amp;aacute;namo Bay who the government admits have information tending to show that Lindh is innocent; and

&#167; a federal judge in the District of Columbia questioned the government’s closure of the Holy Land Foundation, the nation’s largest Muslim charity, without notice, a hearing or even a formal charge that it had engaged in illegal activities.

Ashcroft is losing even in London, where a judge in April dismissed extradition proceedings against Lotfi Raissi, an Algerian man whom US authorities had initially identified as the “lead instructor” of some of the September 11 hijackers but ultimately could not even prove had falsified an application for a pilot’s license.

New challenges are being filed almost daily. In April the Center for Constitutional Rights filed a nationwide class action contesting the government’s pretextual use of immigration authority to detain Arab and Muslim foreign citizens long after they have agreed to leave the country. The center has also brought two suits claiming that the detentions at Guant&amp;aacute;namo Bay violate constitutional and international law. A lawyer for a terrorism suspect has sued Ashcroft over his new policy authorizing government officials to listen in on attorney-client conversations without probable cause or a judicial warrant. And an Indian man apprehended on September 12 with box cutters, and still being held, recently challenged the government’s conduct in holding him for nearly two months without access to a lawyer.

The more candid of the Administration’s defenders might now concede that civil liberties have been curtailed. But if we have prevented another terrorist attack, who’s to say it’s not worth the cost? The trouble is, one cannot know what might have happened had the government respected basic principles like due process, political freedom and the rule of law. But a single fact suggests that the claims of efficacy are overstated: Of the more than 1,500 people arrested since September 11 in the dragnet investigation of that day’s crimes, not one has been charged with any involvement in the crimes under investigation.

Still, don’t expect government officials to be chastened. If anything, as the articles in this week’s issue make clear, the war on terrorism continues to expand, most significantly at the state and local level. State legislatures are enacting copycat antiterrorist legislation, often going further than Congress did in the Patriot Act. The Justice Department is encouraging further mission creep, seeking to entice local police into enforcing immigration law. And the District of Columbia is installing high-powered public surveillance cameras, despite evidence from England that such cameras have done virtually nothing to make the populace more secure.

The rule of law has never been more critical, as the government’s treatment of the Guant&amp;aacute;namo detainees illustrates. Held at Guant&amp;aacute;namo Bay, the detainees are not officially in US territory, and the government argues that they therefore have no constitutional rights. The government also maintains, in contravention of most international law experts, that the detainees have no rights under the Geneva Conventions, the treaty governing detention during wartime. And in any event, the United States is not about to let itself be sued over the matter, having recently “unsigned” the treaty creating the International Criminal Court.

Freed of legal niceties, the government has held the Guant&amp;aacute;namo detainees for more than six months without charges or individualized hearings, has asserted the authority to try them on classified evidence in military courts with no appeal to an independent court, is considering expanding the definition of war crimes to include guilt by association because it has so little evidence of individual wrongdoing, and says it intends to hold them until the war on terrorism ends even if they are acquitted.

The last point is especially critical for rights at home and abroad. National-security types often assure us that wartime diminutions of civil liberties are only temporary. But this is likely to be a permanent war. Defense Secretary Donald Rumsfeld has said that the war will not be over–and the prisoners on Guant&amp;aacute;namo will not be released–until there are no terrorist organizations of potentially global reach left in the world. Given that modern technology gives practically everyone “global reach,” that day will never come. Much as one would wish it so, politically motivated violence directed at civilians by desperate people can no more be extirpated than can “evil” itself. The only certainty is that we will see further erosions of our privacy, our freedoms and our principles.

In light of what lies ahead, the initial judicial response to the Ashcroft agenda is encouraging. But we must not rely exclusively on the courts. Popular resistance is critical, from the Portland police who refused to carry out the FBI’s interviews of Arab immigrants, to the hard work of human rights groups and journalists in bringing abuses to light, to the thousands of teach-ins held on college campuses. Unless we understand that respect for basic human rights is as integral to our security as fighting terrorism, we are in danger of losing sight of what we are fighting for.

David ColeTwitterDavid Cole, national legal director of the ACLU, is legal-affairs correspondent for The Nation and a professor at Georgetown University Law Center. He is the author, most recently, of Engines of Liberty: How Citizen Movements Succeed (April 2016).

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